Should Defendants with Traumatic Brain Injuries Be Held Accountable for Their Actions Essay

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14 September 2016

Should Defendants with Traumatic Brain Injuries Be Held Accountable for Their Actions

“Six weeks after getting his driver’s license, Christopher Tiegreen was in a car collision near his home in Gainesville, Ga. Tiegreen’s Isuzu Trooper flipped several times, causing severe head injuries. A month later, Tiegreen emerged from a coma a different person. The impact of the crash caused damage to the frontal lobe of his brain and sheared his brain stem. During his recovery and rehabilitation, the usually gentle Tiegreen became violent toward his mother, as well as with other family members and rehab staff.

On Sept. 1, 2009, Tiegreen walked out of a duplex apartment where he was supposed to be under 24-hour supervision. In a yard nearby he attacked a young woman holding her 20-month-old son. He was charged with aggravated assault, criminal attempt to commit a felony, false imprisonment, battery, sexual battery and cruelty to a child in the third degree. ” (Davis, 2012). Is Christopher Tiegreen a different person now, with a severely impaired mental capacity, because of his traumatic brain injury, or is he just an angry, violent person who has simply committed his first crime?

More succinctly; do Traumatic Brain Injuries (TBI) cause violent behavior in previously “normal” people, or is the TBI personality change simply a smoke screen being used to defend people with dangerous personality traits who happen to have a brain injury? To begin with, a definition of Traumatic Brain Injury, especially as opposed to a head injury, as most people do confuse the two. The Mayo Clinic defines Traumatic Brain Injury as “Traumatic brain injury occurs when an external mechanical force causes brain dysfunction. The Mayo Clinic, 2012). Traumatic brain injury usually results from a violent blow or jolt to the head or body. An object penetrating the skull, such as a bullet or shattered piece of skull, also can cause traumatic brain injury. “(The Mayo Clinic, 2012). A Traumatic Brain Injury (TBI) is not a “head injury”, it is not a concussion nor an injury to the skull or spine; it is exclusively an injury the brain (and/or brain stem). With the definition clear, we see that the statistics regarding TBIs are shocking; Dr.

William Winslade provides the following information from 2003, “Traumatic brain injury for decades has been, and continues to be, a major public health problem in the United States. Car crashes, gunshot wounds, falls and sports injuries account for two million brain injuries a year, nearly 400,000 hospital admissions, and at least 60,000 deaths. Approximately 90,000 people suffer a severe brain injury and survive but require extended, expensive rehabilitation. Some 2,000 people a year lapse into permanent unconsciousness lasting for months or years before they die. ” (Winslade, 2003).

Some survivors of traumatic brain injury fully recover, but many others experience a multitude of cognitive, emotional and behavioral disabilities. ” (Winslade, 2003). As a survivor of a traumatic Brain Injury, the patient faces a myriad of recovery issues, not simply medical issues such as headaches, lethargy, pain in the distal limbs, speech issues, attention deficit and memory loss may affect cognitive functioning. Per Dr. William Winslade, an expert on Traumatic Brain Injuries; the changes in an individual with a TBI are profound and noticeable “Personality changes are common.

Those who were calm and controlled may become quick-tempered and impulsive. In some people anger erupts into aggressive attacks on others. Many with severe brain injuries lack the ability to control their thoughts, emotions, impulses and their conduct. They may become uninhibited, promiscuous, anxious, paranoid or violent. ” (Winslade, 2003). It is precisely these personality changes that makes Traumatic Brain Injuries so different from “head injuries” such as concussions, which do not present any marked changes is personality.

Courts in the United States have increasingly been faced with the question as to whether or not the profound changes that are associated with TBIs should be considered a mitigating factor in trying defendants with the injury, or in determining what their sentences should be and where they should serve their time, if any; in a prison or in a mental health facility. “According to Duke University researcher Nita Farahany, the number of cases in which judges have mentioned neuroscience evidence in their opinion increased from 112 in 2007 to more than 1,500 in 2011. ” (Koebler, 2012).

The use of neuroscience in the courtroom is definitely increasing, Nita Farahany has been tracking criminal cases in which “lawyers have introduced neuroscientific evidence since 2004. By combing legal opinions, she’s found about 2,000 examples, with 600 of those cases in 2011 alone. ” (Davis, 2012). “While attorneys have tried to win cases based on the lack of control over impulses based on the defendant having a TBI, ” “The biggest way in which neuroscience is being used in the courtroom is to mitigate punishment in one way or another,” Farahany says, adding that it’s almost exclusively used in death penalty cases. They say they have a history of brain injury and trauma to say ‘I have a different brain than the average person. Because of that difference, I have less control over myself. ‘” (Koebler, 2012).

While medical scan, such as CAT scans and MRIs can show a difference in the appearance of the brain itself, there is scant evidence that these damaged brains are actually the cause of crimes committed by defendants suffering from a personality change brought on by a Traumatic Brain Injury. The science behind these brain scans is still in its infancy, but neuroscientists point to anecdotal evidence that traumatic brain injury or brain abnormalities can cause criminal behavior. ” (Koebler, 2012). There is a case that many legal professionals point to when arguing the point for special consideration when trying or sentencing a defendant with a TBI. “In 2002, a 40-year-old Virginia teacher was caught viewing child pornography and making advances on his stepdaughter. He was convicted of child molestation, but the night before he went to jail, he went to the doctor with a crippling headache and confessed he might commit rape.

Doctors found something they didn’t expect: A brain tumor. The cancerous tumor was putting pressure on his orbifrontal cortex, which controls impulse and judgment. The tumor was removed, and the man no longer exhibited pedophilic tendencies. ” (Koebler, 2012). The fact that is most persuasive with this case is the fact that once the tumor, and the pressure it was exerting on the orbifrontal cortex, were removed the patient no longer exhibited any pedophilic tendencies. Could this be the answer to whether or not TBIs do so adversely affect individuals that the personality changes they exhibit should not be held against them in the legal forum?

Not necessarily. “Daniel Martell, a forensic neuropsychologist who examined Weinstein and testified for the prosecution, says the brain images were nothing more than fancy pictures meant to stir a jury. “It was the Christmas tree effect,” Martell says. “Lots of people ooh and aah at the pictures. It doesn’t tell you anything about a person’s behavior. ” (Davis, 2012). Martell makes the point that many attorneys take when faced with opposing counsel who is presenting the TBI defense, stating that the profound changes in persons with TBIs should be a mitigating factor in trials and during sentencing. That hasn’t stopped defense attorneys from trying to introduce evidence of damaged brains into the courtroom, including brain scans. One such case, frequently cited in law and neuroscience journals, is that of New York advertising executive Herbert Weinstein, 65, who was arrested on charges that he strangled his second wife, Barbara, and threw her out the window of their 12th-floor Manhattan apartment in 1991 during an argument about their children. Weinstein never denied killing his wife.

His lawyer, Diarmuid White, argued that Weinstein was not himself due to an arachnoid cyst on his brain. White contended that the cyst caused pressure on part of Weinstein’s temporal lobe, compromising his self-control and emotional regulation. Zachary Weiss, the New York City district attorney who prosecuted the case, thought it was simply a matter of a man getting angry at his wife and killing her. That was until White sent him the brain scan during discovery. “I got this picture in the mail and thought you’ve got to be joking,” Weiss recalls. It got complicated. I called this the rich man’s defense. ” Whether Weinstein’s brain made him do it or not, Weiss believes the case was important.

“It opened up a debate academically about responsibility and free will, and how we evaluate scientific evidence,” says Weiss, twenty years after the case; Martell still believes brain scans don’t explain specific behaviors. “The problem is that the science has not come along to support what the scan means,” says Martell, now a Newport Beach, Calif. based consultant for criminal as well as civil cases. “Since the ’90s, we’ve been much better at generating the cool pictures than we are at explaining what they mean. ” (Davis, 2012). The opinion that Martell expresses about TBIs is not rare; many in the legal profession see the whole TBI debate as another “smoke and mirror” defense on par with the famous “Twinkie” defense; interesting and impressive in the courtroom, but lacking in any real legal merit. There is a group of individuals whose TBIs are taken into special onsideration; combat veterans. “Among the growing number of cases involving neuroscientific evidence are those that involve combat veterans from Afghanistan and Iraq as defendants. ” (Davis, 2012).

“Dr. Chrisanne Gordon, a Columbus, Ohio, rehabilitation medicine specialist who works with brain-injured vets, is one of three authors who wrote a chapter about traumatic brain injury. “They’re not insane, they’re not retarded, but they frequently have issues with impulse control and fall through the cracks of the legal system,” she says. (Davis, 2012). Combat veterans pose a desperate problem for the court systems judging them as defendants; because their injuries are usually combat related most people view them with a particular amount of sympathy because they received their injury in a “heroic” manner; serving the country. Agreeing that veteran’s legal situations are difficult to handle, at best, it has been suggested that courts need to view veteran’s with an air of compassion.

There are courts who are taking definitive steps when dealing with combat veteran’s with TBIs who have ended up as defendants. “One of veterans’ biggest allies in Ohio is state Supreme Court Justice Evelyn Stratton, who plans to work full time with veterans’ justice issues after she retires later this year. She supports the development of more veterans’ treatment courts and hopes to change sentencing guidelines to ensure judges in all courts look at a defendant’s military service record. We want them to look at war experience as mitigation,” she says. “And we want them at least to look at the causes of what happened. ” (Davis, 2012). Traumatic Brain Injuries are not simple to define and apply to a law principle; they allow that a defendant can be found not guilty of a crime because of their mental health issues, saying, in essence, that the defendant is not responsible for their crime because they had no real understanding of their actions or the consequences thereof.

It will take many more years of research, to produce empirical evidence to supplement the anecdotal evidence that does exist, to determine if the dramatic personality changes that patients with Traumatic Brain Injuries exhibit, has the brain been so physically damaged that the victims of TBIs are no longer able to control themselves, or is the Traumatic Brain Injury defense simply a criminal defense “flavor of the week. ”